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Email Communications for Lawyers: Strategies and Ethics

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Email Communications for Lawyers: Strategies and Ethics

Lawyers and staff are drowning in email, and many feel helpless when trying to get it under control. While communicating with clients via email may be quick and easy, there are ethical pitfalls that can cause problems for unwary lawyers. This program will cover how to efficiently store and organize email and attachments, successfully deal with high email volume, and communicate ethically and effectively with clients.

Transcript

- Hello and welcome to Email Communication for Lawyers: Strategies and Ethics. I'm Allison Johs, president of Legal Ease Consulting, where I help lawyers with the business end of their practice. So, I work with them on everything from marketing and business development to practice management and productivity, and email is one of the topics that comes up with my clients all of the time. Email can be a great productivity tool. It can be a time saver. It's quick and easy, but it also can be a productivity killer. It can be very easy to get sucked into email and to have it take over your whole day. So, what we're gonna talk about today is some strategies and tools for using email more effectively, and we'll also talk about ethics. So, our agenda for today is first to talk about when email is and isn't the right tool for the job. Sometimes, email is the best way to communicate what you want, and other times, email just makes things more complicated. Next, we'll talk about when you are the sender, how to send more effective email messages to get your point across better, and also to elicit better responses to your email messages. Then we'll talk about a whole bunch of tips and tools to better manage your email inbox. So, you don't sit down and realize that half of the day is over, and all you've done is get bogged down in your email inbox. And then finally, we'll talk about some ethical issues when you communicate by email. So our first topic is, when is email the right tool? So, I've got a couple of thoughts on this. Email is a great tool to use when you're just communicating facts. When you are sending a message that just requires a short response and not a long explanation. It's the right tool when words are enough to communicate your message. What I mean by that is that you don't need things like body language or inflection, or just the words won't be misinterpreted potentially. Email is also a great tool to use if you are trying to confirm a previous conversation or document something in writing that you have already communicated another way to a client, a colleague, or an adversary. But email isn't necessarily the right tool to use for emotional or sensitive subjects. So, anything that might be misinterpreted, email might not be the best tool to use. It's not the best tool to use if tone or inflection or again, body language are important to understanding your message. Email is also not a great tool to use for scheduling. We get those back and forth strings of emails, especially if you're trying to schedule something with multiple people, you've got those reply alls, and it's hard to even manage who's responded, when they're available, when they're not available. So email might not be the right tool for scheduling. So let's talk a little bit about when you're the sender, when you're creating the email message, how do you write a message that is more effective? When you send better email messages, you get better responses. So the first step to sending better messages is to think about who your audience is and write for your audience. So, when you're sending an email message to another lawyer, whether that be a colleague in your firm, an adversary, another attorney that you might be working with co-counsel, you may write things differently than you would write if you were writing an email to a client, a lay person who doesn't necessarily understand the legal jargon, right? You may be writing an email message to a personal friend, and that may be much more casual, but if you're writing for the court, you wanna make sure that your language is much more professional. So always think about who your audience is and what information they may or may not already have. Use the KISS principle: keep it short and simple. Email may not be the best tool if you have a long, complicated discussion or information to get across, you want email to be short and simple so that people actually digest your message. Next, you want to request a specific action. And here's where I find that a lot of people make mistakes in email. They're sending a message and they're expecting a specific response, but they're not explicitly saying that in their message so the recipient doesn't really understand what it is that you want them to do. So make sure that you request specific actions. So one way to do that, especially if you have multiple things or multiple responses that you want from one email message, is to number them and to say, "I need you to respond yes or no to these five questions," or whatever it might be, but make sure that you're requesting a specific action from the recipient. Next, stick to the subject. Subject line is what I mean there. Oftentimes, we fall into the trap of sending email messages or responding to an email message, and we've now changed the subject of what we're talking about, and that gets confusing for the recipient. And it also makes it more difficult to search through and find the email that you're looking for. So, it's very easy when you're sending an email message to just change the subject line. If the body of your email, the subject has changed, then change the subject line to match what you're talking about in the email message. And use an email signature. Someone may receive your email and they may decide that they need to have a conversation with you. So, instead of making them search for your telephone number or your other contact information, use an email signature that includes that to make it easy for them to respond to you. Couple of other tips, again, this idea of sending professional email messages, you wanna use professional language, so you don't wanna use abbreviations or emojis or things like that in a professional email. This is a business communication, whether you're writing to an adversary, the court or your client. So you wanna make sure that you're using professional language. Another tip is to take a look at whatever attachments are going in your email. So again, maybe you're forwarding a message, but maybe the new recipient doesn't need the attachment. So unnecessary attachments, they kind of bloat your email message. They make it take up more space and it can be confusing if there's an unnecessary or an unrelated attachment on an email. For ethics purposes, you wanna make sure that you're double checking, triple checking attachments. Also, lawyers have gotten into some sticky situations because they have forwarded emails with attachments that the recipient shouldn't see, or that contain confidential information. So double check those attachments. And then shorten the string. So I just talked a little bit with attachments about email blow. The same thing happens when an email string gets too long. And that is often the case if you're going to an old message with an old subject line that you're using, because you don't have this person's email address in your address book, instead, you're just searching for an old email and then hitting reply to that, and sending them a message on a completely unrelated subject. So, aside from changing the subject line, you wanna get rid of that old email string so that you don't have unnecessarily bloat and you're not confusing things. This is also an important thing to look at, again, if you're forwarding messages to other people, make sure there aren't messages lower down in the string that you don't want the new recipient to see. And then finally, double check who your recipients are. Be very careful of autofill, again, that has gotten some attorneys into hot water. These email programs, as soon as you start typing the first couple of letters automatically fill in their recipient's name and email address. And it may not be the email that you want to send this message to. So before you hit send, make sure that you're not only checking your attachments and the email string, but make sure that you have the correct recipients as well. Couple more tips in the same vein, watch out for reply all. So, not only do you wanna make sure that you're not replying all if you don't have to, so that you don't annoy everyone, you know, for example, somebody sends out a message with a whole bunch of recipients, just for informational purposes. If you wanna respond back just to that person, hit reply and not reply all. It makes people crazy. I'm sure it's happened to you where you're now getting messages from a whole bunch of people that you don't even know who are responding to the original recipient, but they hit reply all by accident. Same thing can occur if you've got a bunch of people on the string, and maybe there's something confidential that you wanna say back, make sure that you're hitting not reply all but reply so that everyone who is included is not getting that message. Beware of BCC. So sometimes, lawyers will blind copy a client on an email message to, for example, opposing counsel, because they want their client to know what's happening on the case, and they figure, "This is one step. I'll just BCC the client on my correspondence, my email to opposing counsel." But the problem with that can come with a client doesn't necessarily realize that they're BCC'd, and they hit that reply all by mistake. And now the client thinks they're sending you a confidential communication and they're really copying opposing counsel. So a better solution to that, and this was even discussed in a New York State Bar Association: Ethics Opinion, it's opinion 1076 from December of 2015, the better option is to keep the client off of that email string entirely. Don't use BCC, and instead just send the message to opposing counsel and then forward the sent message to your client so that they can see it. It's an extra step, but it is much more safe. You don't have to worry about what the client is going to do and how proficient they are with email. And then finally, whenever you're sending an email message, consider that it may become an exhibit in a legal proceeding, a malpractice action, or a disciplinary proceeding at some point in the future. So you always wanna be very careful with what you're putting in email, how you are responding, what kind of language you're using, especially if you're responding to a client, a disgruntled client, be very careful with those messages, because if the client is really disgruntled and they file a grievance and there's a disciplinary proceeding, that email message to the client may become an exhibit. Another tip when you're sender of email, because we're trying to be as productive and as efficient as we possibly can, in Outlook, there's something called Quick Parts. And I really like Quick Parts because they help me create email messages faster. So you can find Quick Parts under the insert tab in Outlook. And what you can do is save copy that you use a lot into Quick Parts. So when you type the message out once, save that as a Quick Part and name it. And then, if it's something that you use frequently, you don't have to retype it every time. You're not reinventing the wheel. You can just, in a couple of clicks, put the whole message in and hit send. So, some examples of things that you might use Quick Parts for are requests documents or information, things like instructions, form letters, frequently asked questions. If you get clients who ask the same questions over and over that you're answering an email, create a Quick Part from it so that you can quickly and easily answer those questions without either cutting and pasting or trying to make sure that you're covering all the bases, those kinds of things, directions to courthouses, things like that you might want to use a Quick Part for. Okay. So our next topic is managing your inbox. And here is where a lot of people get bogged down, right? They sit down at their desk in the beginning of the day, they have all kinds of things that they would like to accomplish, and they open up their email, and then they get sucked into everybody else's priorities, which is really what email messages represent, right? It's somebody else sending you something, it's usually their priority and not yours. So what we want to learn to do is learn ways that we can get through that inbox more quickly, more efficiently, more effectively, so that we can get on with the other work that we need to accomplish during the day. And a lot of times, that means that we want to touch that email message as few times as possible so that we're not constantly going back and reviewing the same information over and over. So one of my biggest tips is, if this is at all possible for you in your practice, and even if you don't think it is, I would suggest that you try it, don't keep your inbox open all day. Close it down so that it doesn't distract you from working on the focused work that you need to do. And also, so that it doesn't distract you when you're having a conversation on the phone with a client, or if you have a colleague in your office, when you leave that inbox open and you see those new messages filter in, it can be easy for that to pull your attention away from the person in front of you, the person on the phone. Turn off your notifications, so those little popups that tell you that you have a new message or the notification sound, those are really distracting and it's very hard to ignore them. For whatever reason, we have sort of an instinctive response that when a new message comes in, we need to look at it. So, even if you keep your inbox open, at the very least, turn off notifications so that they're not distracting you. Some other email strategies I recommend, if at all possible and it may not be possible if you have specific kinds of practices like criminal, I would say for example, but for most lawyers if you can, avoid checking email first thing in the morning because it can sabotage your entire day. So, I usually recommend to my clients that they work on their highest priority work, whatever that might be first, and then check their email after that. If you absolutely, positively have to check your email first thing in the morning, I would recommend setting a very limited timer just for you to triage, to go through, to make sure there's nothing urgent that you need to respond to right away, and then go to your highest priority productive work, and then come back to your email. Another strategy is to check email at specified times during the day. So, maybe you check it at 10:30 in the morning after you've spent some time working on your highest priority for the day, and then maybe you check it right before or right after lunch. And then, maybe you check it at 4:00 in the afternoon so that you can get to anything that needs to be handled before the end of the workday. Whatever schedule works for you. But instead of constantly going back and forth between your work and your email, just checking email at those specified times. Don't fall into the always available trap. Now what I mean for that is, if you are always responding to email as soon as it comes in, whether it's on your work computer or your home on your smart device or your phone or your tablet, you're training people to think that you're going to respond immediately, no matter what time it is, no matter where you are. And that's not necessarily the best strategy for your productivity. It's not good for you and it's not good for your clients. You don't want people to think that you're available at the drop of a hat because that may not always be possible. And it may not always be desirable. And when you don't then suddenly respond within two minutes, then you're getting the client who's sending you 12 emails, or they're calling your office three times because they think they can't get to you because usually you respond immediately. So don't fall into that trap. Instead, what you want to do is set expectations for response time. So, there's a couple of ways that you can manage those expectations or set those expectations. For example, at the initial consultation with your clients, you can talk to them about what the best ways are to communicate with you, and if you're communicating by email, when you will respond. So, you want to maybe tell them that you will always respond to their email within 24 hours or a by end of business, as long as you receive the email by a certain time in the day. Again, whatever works for you, but talk to clients about that, how you're gonna communicate with them at the initial consultation. You can also manage expectations, I have some clients who do this, they use automatic replies. So, if they're checking email at specified times during the day, they turn on automatic replies at certain hours of the day when they know that they are not checking email or they're not available. So maybe it's a day that they're in the middle of a trial and they'll be in court all day. They set the automatic reply to say, "I'm in court. I received your email. I will respond in X amount of time," or by you know, a certain day or whatever that needs to be based on your schedule. That's another way to manage expectations. You can also create a communication policy that you can hand out, and that can be within your office too. So that people within your office aren't expecting you to respond right away. Let people know what your communication policy is. And that may include when email isn't the most appropriate way to communicate. So for example, you may tell clients that if they have anything that's urgent, that needs to be addressed in less than one business day, that they need to call your office, and if they can't get to you, to speak to your assistant so that somebody can take care of it. But that communication is not appropriate for email. Another way to process email more quickly is by using the reading pane or now what they call the preview pane in Outlook. And what that does is it lets you see the contents of the email without opening it. So it puts a window on your screen, I like to put mine on the right hand side, some people like to put it on the bottom of the screen, but it allows you to process email faster because you don't have to click so many times. So to access the reading pane, if you don't have it right now, you wanna click on the view menu in Outlook and then click preview and then tell it where you want that screen to go. Do you want it to go, you know, to the right, to the left on the bottom, on the top, wherever you find that it's the most comfortable for you. But I find that that's much easier. I don't have to open every email. I can just go quickly through and look at each message in my inbox. Another way that I manage my inbox, this is really helpful for me, is to color code messages from important recipients. So, I have certain people that I have color coded. So when their message comes in, it comes in bright green or bright blue, so that message stands out. So, if I'm doing that triage and I'm just scanning through my inbox, I can see right away if I've gotten a message from an important recipient, a client, you can do it by subject, however you want to do it. But that color coding I find is very helpful. And the way to do that in Outlook is through what's called conditional formatting. So you find that on the view tab, click view settings, then click on conditional formatting, click add, and then you name it and choose a color. So maybe you wanna call it clients and you wanna color them bright red. Then you add the condition. So what is the condition? It comes from a certain person and it has certain things in the email subject line. You know, there are multiple ways that you can work this out, then click through Okay on all screens and you'll have applied that conditional formatting. Conditional formatting is really a type of rule. So, let's talk about other ways to use rules and folders in Outlook to help process your email more quickly. So by creating rules and folders, one of the things you can do is automatically move messages into separate folders. So, you pull them out of your email inbox. So, sometimes you can use them to get unimportant messages out of the way, things that you may still want to receive, but they're not the main focus of what you wanna be doing in your email. So for example, maybe that's newsletters or Bar Association announcements. Maybe you wanna set up a rule and a folder so that those things go into a separate folder and not cluttering up your main email inbox, or you can do it the opposite way. Maybe you wanna create a folder for a client so that all of the emails that you get from that client or on a particular case, whether it's from an adversary or from a client or whoever, or from a specific sender or with a specific subject, into a separate folder, then you can just look at that folder to find all of those messages in the same place. Rules allow for faster processing of email because it's organized for you. It sets up automation for these messages so you have less to do to process. It's just a matter of knowing where you have to go to look for those messages. So to access rules, to create rules, click on the home menu and then click on rules and create rule. And then there's a whole step by step wizard that Outlook takes you through to set up your conditions and determine where you want those messages to go, which messages you want to move, and so forth. This seems like an obvious one, but as we're going through our email inbox, a lot of times we see messages that are just junk. So, get them out of your inbox. Delete them as fast as you can. I always say delete liberally and quickly. Hardly ever is there a message that you delete that you really need back. And if that's the case, you can always peruse your trash bin before emptying it. You know, maybe once a week, to make sure that you didn't inadvertently delete an important message. Corollary to that is the unsubscribe rule, right? How many times do you encounter somebody, you meet somebody maybe at a networking event and all of a sudden you're getting their email newsletter or you're getting spam emails from them? You buy something and now you've gotten an email every single day from Best Buy because you went to buy some computer equipment, whatever it might be. Unsubscribe. Instead of just deleting those messages, think about whether do you really need to get a daily email from Best Buy about their, you know, most recent sales or is that just cluttering up your inbox and taking extra time. Even deleting, although it only takes a second or two, if you have to do that every day, it gets monotonous. So unsubscribe from any of that useless information. You can always go back and resubscribe later. Think about separating your personal email from your business email. Create a separate email address, whether that's in Gmail or something else, for personal email messages or for those shopping sites, for newsletters maybe even, so that what's in your business email inbox is really just business. Then try to respond as soon as possible. Now, why do I say that's an inbox management strategy? I say that because you leave it languishing in your inbox, it can get lost and that can cause problems. But it also, the faster that you respond, the faster that you can get it out of that inbox, and it's not taking up time looking at it two and three and four times. And then, make sure that when you're processing your email, that you're not distracted. You don't wanna be trying to process your email while you are doing something else. That's when mistakes get made, and sometimes that's when we get into ethical problems. So when you're processing email, when you're responding to email, when you're sending an email, make sure that you're giving it your full attention. So, now that we've kind of processed what can be processed, maybe we've moved things into folders, we've deleted what we can delete, we've unsubscribed from what we can unsubscribe from, now when we're getting to the nitty gritty of when we actually have to do something with the message, as I just mentioned, we wanna respond as quickly as possible. So in that time that you've designated now for processing your email, because you're not checking constantly throughout the day, you've designated and set aside specific time where you're going to process your email, as you're going through, can you respond in two minutes? If you can, then respond right away. And the reason for that as I just mentioned, is that you're not leaving it sitting, cluttering up your inbox. You're not having to process it more than once, and you're not potentially letting it fall through the cracks. Now, what do you do if you can't respond in two minutes? Do we really wanna leave it sitting in our inbox so that we keep seeing the same message or we have to scroll down to find it later? One method to avoid that is called the action folder. So if you create a folder in Outlook that's called "action," usually that will float up to the top of your folder's list because action starts with an "a," so that's an extra plus, but you drag and drop messages into the action folder that need more than two minutes to address. And then once you've finished processing your entire inbox, you can go to the action folder and figure out what the next step is for that email. So the action folder might be appropriate if, you know, I need to go and look at the file and look something up, or I need to do some research, or I need to talk to somebody else before I can respond to this email. All of those things might be appropriate for an action folder. So, let's talk about saving and storing important email. And does it belong somewhere else, or should it be saved or stored right in Outlook in your inbox? I would say, most of the time you don't want to be filing your email or storing email in your inbox. So, if it relates to a client file, it belongs in the client's file. You don't wanna store that correspondence separately in email. And one of the reasons for that is simply that when you're looking at a client's file, you wanna make sure that you have all of the most updated and most current information in that client file, all in one place. You don't wanna have to look in multiple locations to see if you have the most updated information. Another reason for moving out of the inbox into the client's file, is that you may not be the only person who needs to access that client's file and needs to know the most updated information. And so, if you are the only person who has access to your email inbox, you are the only person who has access to that client information. And that may not be the best practice. So you wanna move that out of email and into the file. There's a couple of ways you can do that. You can save the email right to the file as an email message and it will open up again in email when you open it from the client's file, or you can save the email message and if it has attachments to a PDF and then store the PDF in your electronic filing system. Your inbox is also not your to-do list. So, if an email message represents a task that you have to complete, you may want to move it out of your email and to your task list. Now, we just talked about an action folder, so that's sort of is another option. And then, once you've completed the task, you can move the message to the client file. But this may be something else, maybe it's not a client file, but it's something that you have to take action on. Maybe it's an invitation to an event and you're not sure if you can attend, but you don't want it to get lost. So, move the entire thing to your task list. Now, if you're using Outlook, you can use the drag and drop method. Just drag that email message to the task icon in Outlook and it will create a task for you. And then you can put in whatever information you need to put in, but when you drag and drop the email, it takes the entire email. So if it's an event invitation or what have you, all of that information, the date and the time, location, etcetera, is maintained in your task, or you could just create a new task and manually fill in the information. And the way you would do that is to click on the task icon in Outlook, and that looks like a little clipboard. Then, you click new task and then you can add a subject or sort of the name of the task, start and end dates, priority, you can even add reminders so that task will pop up. So maybe if it's an event invitation, for example, you're not sure if you want to attend, you can create a task and put a reminder for three days from now to take a look and decide whether or not you want to attend, for example. And then you can add notes in there. Maybe wanna copy and paste the event information. You can also flag an email in Outlook to create a to do that gets added to your task list. So, the way to do that is just to left click on the message to add Outlook's sort of default automatic flag, or if you right click you get more options. So you can put custom dates in the automatic or default flag, I think defaults to today, which may not be helpful because you may just create a never ending to do list, but you can add your own date for when you want that to do to be, you can add reminders. There's other things that you can do from that email message to create a task. You can also assign tasks to other people in Outlook. So sometimes you get an email message and you say, "Oh well, I'm gonna create a task out of this, but I don't need to do this. Maybe my assistant needs to do it, or maybe my associate needs to do it." So to assign a task in Outlook, on the task menu, just click on at the top, click assign task, and then enter the name or the email of the person in the two line. Then you can do things like assign a due date, so they know when this needs to be done. You can tell them if this is a high priority task or not. Even though you're assigning the task to someone else, you wanna keep it on your task list so that you can keep tabs on it. You can also request a report when they mark the task complete, so you'll be notified it's done. When you've done all that, press send and it gets assigned to somebody else in your office. So, that's an easy way to delegate tasks out of your email, rather than just forwarding the email to create a task from it. So, what else might arrive in your inbox that really isn't necessarily a task? It may be an appointment, but it may not come through as an appointment. It may just come through as an email message. So for example, maybe you get an email message about a practice group meeting or a committee meeting at the Bar Association. If that email really represents an appointment, don't leave it in your inbox, move it to your calendar, and you can use that same drag and drop method in Outlook to drag it to your calendar. And then some other ways that you can work with your calendar in Outlook, and I'm mentioning this in an email program only because our email inbox gets cluttered up with all of these things that are really tasks or appointments and not necessarily email, but also because as we mentioned earlier, one of the things that email is not necessarily the greatest tool for, is for scheduling appointments. So sending emails to, especially if you've got multiple people that you're trying to schedule, email is a really bad tool for that. So, there are a couple of different things that you can do instead of emailing to create an appointment. Some of them, you can do write an Outlook. You can share your calendar with other people in Outlook. You can use the scheduling assistant, or you can use the meeting poll, which is also called FindTime. And I'll talk a little bit about those each in a minute, but outside of Outlook, a couple of other tools that you might think about using to schedule appointments, whether with one other person or multiple other people, are doodle.com and calendly.com. So in Calendly, you create it an account and you can set up all kinds of different appointments, and then you just send a link to somebody and they can choose a time on your calendar based on the parameters that you set out. Doodle, you don't necessarily have to have an account. You can just set up a Doodle poll on the fly, and what that does is you put in all of your available times, it sends an email to the people that you want to attend, and they go in and check off the times that they're available, and then you can choose the time that works the best. So within Outlook, if you're on Exchange, you can share your calendar with other people. And the way you do that is to click on the calendar icon. And then in the ribbon, click on share calendar and then choose your options and decide who you're going to share it with, and then you can share your calendar. Within your organization, if you have Exchange, you can also use Outlook's scheduling assistant. And what that does is it allows you to see who is available and when, and then you can choose a time where you can already see that everybody is available. So what you would do is create a new meeting and add all of the people that you want to attend within your organization, and you will see their calendars and you can select the time that makes sense for everybody. Also in Outlook, if you're now trying to set up a meeting with people who aren't necessarily in your organization, you can use FindTime, which is also called the meeting poll. So you wanna open a new appointment or meeting, add your title, add your recipients, and then click on that meeting poll icon, which is a little red calendar icon with like a magnifying glass on a clock, then you set the timeframe for the meeting and pick your suggested dates, and then click next to add additional options, which is more days. So, in other words, if you're trying to schedule something and you have options beyond just the one particular day, choose all your additional options, dates and times, then click add to email, and that will create an email to all of your recipients with the poll. And similar to Doodle, they'll click to say when they're available, and then you can choose a date based on when everyone or the most people possible are available for your meeting. So now let's talk a little bit about ethics. So email, again, can be a great tool for certain things, but there are some pitfalls that you need to be aware of, and also some ethics rules that you need to be aware of whenever you're using email to communicate, especially to communicate with clients or to send confidential client information. So some of the potential ethical pitfalls that arise with email include a potential breach of confidentiality at setting up an inadvertent attorney-client relationship through email, emailing with a represented party, confidentiality and security when using a vendor for your email or a third party to send messages or documents. And there's also potential pitfalls involved in discarding or deleting email messages. So, let's talk about some of the rules and opinions that apply to email. So, the first one is ABA model rule 1.1, which is the duty of competence. And we know that that duty to be competent includes being competent with technology, which means you are expected to know the basics of how email works and what security and confidentiality tools are available to you to make sure that you are not breaching client confidence. Then, obviously there's the duty of confidentiality, which is ABA model rule 1.6. And the email may also come into play with the duty to prospective clients, which is ABA model rule 1.18. And then, there are two ABA opinions that I wanna talk about as well. One is ABA formal opinion 459 from 2011, and the other is ABA formal opinion 477, which was issued in 2017. So, let's talk first about ABA formal opinion 459, which was issued in 2011. And that opinion addressed the issue of whether email was an appropriate tool to use for communicating confidential client information. And one of the first questions that was addressed in the opinion is, is there a reasonable expectation of privacy in the use of email? Then, is there a significant risk that the communication will be read by a third party? One of the issues to address then is, is the client using a workplace device or system, and does an employer or third party have access? Those kind of go under that significant risk issue. So, one of the things that you have to think about as a lawyer when you are communicating with client over email is, during that initial consultation where you're talking about your communication policy and explaining expectations with respect to email, you also need to explore whether for this particular client email is an appropriate form of communication. Is there a reasonable expectation that communication is going to stay just between you and the client? So you may have to ask questions like, who has access to the client's devices and where they access their email? So, is there a significant risk the communication will be read by a third party? Well, if they're sharing a computer at home with their spouse or their child, and this is a divorce action or really any other kind of personal action for this individual, is there really a reasonable expectation of privacy when a third party, the spouse or the child, can access those email messages? Same thing if the client is using a workplace device or workplace system, if this is a employer owned computer, laptop, smartphone that the client is using, and if the employer especially has a policy that they can access employee email messages, or they can monitor employee email, that's potentially a breach of confidentiality. So, email might not be the best way for you to communicate with that client. If that employer has access, if they're using a work email system or a work email address, so maybe they need to set up a separate personal email that they only access on their personally owned smart device. So, these are the kinds of questions that you should be asking if you don't want to run a foul of formal opinion 459. And these are things, I think, not a lot of lawyers ask their clients and it potentially could cause a problem. And especially if you're thinking, again, like, it's a divorce action and it's other people in the household that have access, or if you're talking about an employment discrimination matter and they're accessing through an employee work device, the employer is gonna have access to that information. Now, not only is it breach, but it's a breach that potentially gives an advantage to your adversary. Now, let's next talk about ABA formal opinion 477, that was issued in 2017. So, and this opinion actually changed a previous opinion, which was formal opinion 99-413, which discussed whether, what kinds of measures lawyers needed to use when they were using email to protect client confidentiality. And the standard is that lawyers have an obligation to use reasonable measures to prevent inadvertent or unauthorized disclosure of confidential information. Now in 1999, what was reasonable is different than what was reasonable in 2017, technology had advanced, there were all kinds of changes that were being made that made it much easier for lawyers to take additional precautions to prevent disclosure of confidential information. So, ABA formal opinion 477 imposed some sort of stricter requirements or obligations on lawyers, especially in specific circumstances. So, let's look at this in a little bit more detail. Some of the factors to consider in terms of what's reasonable for lawyers to do include how sensitive the information is. So for example, if it's medical information, financial information, information about trade secrets, things like that, that would be considered to be highly sensitive that may lean towards the lawyer having to take more stringent measures in order to be considered reasonable. Next factor is the likelihood of disclosure if additional safeguards are not employed. So, how easy would it be for the email to be breached or to be read, or the information to be disclosed if there aren't additional safeguards on top of just a regular email message? Then, you need to consider, well, what is the cost of employing those additional safeguards? No one's expecting lawyers to go into bankruptcy to put systems into place that are too expensive, especially considering the other factors, the sensitivity of the information, and the likelihood of disclosure. So all these things need to be balanced. And in addition to the cost, how difficult is it to implement these safeguards? And this is one of the things, really, that has changed significantly between 1999 and 2017. What may have been much more expensive or much more complicated to implement like encryption and things like that back in 1999 are much more easy to implement. There are better tools for doing, them less expensive tools than there were before. And then, the final factor is the extent to which the safeguards adversely affect the lawyer's ability to represent clients. So, if it creates a significant obstacle in your ability to represent the client, if the client doesn't have access to certain tools or can't use certain tools, or if it makes it impossible to communicate, that's another factor that might lean towards less stringent as opposed to more stringent measures. So, if a device or an important piece of software is excessively difficult to use, that might go in favor of less stringent safeguards, for example. So as a result of all of this, what are the steps that lawyers need to take? According to the opinion, first, they need to understand the nature of the threat. And to some degree, this goes back to that idea of model rule 1.1 with respect to competence, right? Part of being a competent lawyer is understanding the nature of the threat of disclosure, you know, breach of confidentiality of specific information. Lawyers also need to understand how client confidential information is transmitted and where that information is stored. So some of that goes to, I said earlier, that one of the things to think about is, what measures are in place when you're using a third party vendor. So, are you using a third party vendor for your email, are you using a third party vendor to send and receive documents, confidential documents from clients? You need to understand what that vendor's policies are. Is the information encrypted, can the vendor have access to it, can the vendor see it, do you have to have an encryption key, how does the information get sent, and where is it kept and for how long is it kept? Lawyers also need to understand and use reasonable electronic security measures. So you have to know what is available out there to you and what you can use. And then you have to determine how electronic communication about client matters should be protected. Does it need to be encrypted? Do there need to be additional security measures put into place? So, it's a little bit more onus on the lawyer and a lot more things that you have to look at under the circumstances to see what's reasonable and what's not with respect to disclosure of client information. Lawyers also need to label confidential information. It needs to be very clear what information is confidential. You need to train lawyers and non-lawyer assistance in technology and information security. So all of those fishing emails, you need to be as a manager, you need to be training the people in your office, not just the lawyers, what they need to do to make sure that they're not breaching confidential, you know, client information and security. You have to conduct due diligence on your vendors providing communication technology to make sure that their practices are in line with the ethics rules. And you also need to get input from clients on what they can and can't use, and to try to figure out what measures make the most sense for your clients and for your practice. And just to mention a couple of the other pitfalls that I talked about before. So we've talked a lot about that breach of confidentiality, inadvertent attorney-client relationship can come up with email. When you have email links in places like your website, if you are inviting people to contact you, you need to be very clear about what that contact means and that it does not mean that by sending you an email that establishes an attorney-client relationship, because you don't wanna get stuck into being forced into an attorney-client relationship that you don't wanna take on, or creating a conflict with an existing client or a future client. The other thing to think about is that you've got confidentiality even with prospective clients. That's rule 1.18. So, whatever information is conveyed to you via email, even if it's not by a client, if it's a prospective client, you need to keep that confidential. So, if you have those kinds of links on your website and asking people to contact you or send you their information about their case, you wanna have some disclaimers in there and be very clear about how much or how little information you want them to convey to you, so that you're not getting stuck in those situations. Email with a represented adversary. You also wanna make sure those CC and BCC, there are ethics opinions in different jurisdictions that cover that. If you are responding to an email from an adversary, and the adversary has CC'd their client on the email to you, does that constitute communicating with a represented party? You also wanna think about when you're discarding or deleting email, is it email that needs to be retained for a specific purpose? Maybe it doesn't need to be retained in your email. Maybe it needs to be retained in some other way, but make sure that you're not creating some kind of a spoliation issue by deleting or discarding email, whether that's email with a client or with an adversary that pertains to a case, you wanna be very sure that when you are deleting that, you're not deleting anything that needs to legally be maintained for a specific reason. So in closing, I hope that these tips will help you to better manage your email inbox, to send better messages so that you receive better responses, and so that you can stay abreast of the ethics issues that might apply when you're using email to communicate. Again, I'm Allison Johs from legal Ease Consulting. Please feel free to contact me if you have any questions, or if you need any help being more productive with your email.

Presenter(s)

Allison Johs
President
Legal Ease Consulting, Inc.

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